Allahabad High Court
E.S.I.Corp. Kanpur vs Ram Chander on 27 April, 2023
Bench: Kaushal Jayendra Thaker
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 44
Case :- FIRST APPEAL FROM ORDER No. - 281 of 2001
Appellant :- E.S.I.Corp. Kanpur
Respondent :- Ram Chander
Counsel for Appellant :- ,Vipul Kumar
Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. Heard learned counsel for the appellant and the learned counsel for the respondent.
2. This appeal, at the behest of the Employees State Insurance Corporation, challenges the judgment and order dated 22.12.2000 passed by Judge, Employees Insurance Court, Kanpur in Appeal No.89 of 1993 whereby the Court below has been pleased to award 5% less earning capacity to the respondent.
3. The appellant has challenged the award of the learned Commissioner on the following substantial questions of law:
"(1) Whether the appeal of the respondent before court below as barred by time in view of Rule 20B of Employees State Insurance ( Central) Rules 1950 in as much as the decision of the Medical Board is dated 22.7.1988 whereas the respondent has preferred the appeal before court below in the year 1993 much after the period of three months as provided in Rule 20B of Employees State Insurance ( Court) Rule, 1950 ?
(2) Whether the court below can reverse the finding of the medical board which is a body of expert without there being any evidence on record to prove that the decision of the Medical Board was wrong and particularly in view of the fact that the respondent has failed to prove that the decision of the Medical Board is illegal ?
(3) Whether the court below was justified in relying upon the certificate of orthopaedic surgeon in evidence without the same having been admitted in evidence and further the same having been proved ?
(4) Whether the alleged report of Orthopedic surgeon can be read in evidence for the first time in appeal ?
(5) Whether the court below as justified in awarding loss earning capacity to the respondent without recording a finding as to how the injury suffered by the respondent is of such a nature as to enable how less earning capacity particularly in view of the fact that the medical board has assigned ample reason for awarding not less earning capacity to the respondent ? "
4. Brief facts are that the Medical Board issued a certificate awarding Nil loss of earning capacity to the injured-claimant. The injured suffered employment injuries on right hand. The employment injury was not in dispute. What is in dispute is the grant of compensation considering his employment injury to 5%. Can this be considered to be bad and perverse finding?
5. The appeal under Workmen Compensation Act/Employees State Insurance Act has to be viewed very seriously in view of the judgment in Golla Rajanna Etc. Etc. Vs. Divisional Manager and Another, 2017 (1) TAC 259 (SC). The finding of fact is that the injured was an employee who had sustained employment injury and was incapacitated to the tune of 30%.
6. I am supported in my view by the decision of the Apex Court in Civil Appeal No.7470 of 2009 North East Karnataka Road Transport Corporation Vs. Smt. Sujatha decided on 2.11.2018 wherein it has been held that the Court has held as under:
"15. Such appeal is then heard on the question of admission with a view to find out as to whether it involves any substantial question of law or not. Whether the appeal involves a substantial question of law or not depends upon the facts of each case and needs an examination by the High Court. If the substantial question of law arises, the High Court would admit the appeal for final hearing on merit else would dismiss in limini with reasons that it does not involve any substantial question/s of law.
16. Now coming to the facts of this case, we find that the appeal before the High Court did not involve any substantial question of law on the material questions set out above. In other words, in our view, the Commissioner decided all the material questions arising in the case properly on the basis of evidence adduced by the parties and rightly determined the compensation payable to the respondent. It was, therefore, rightly affirmed by the High Court on facts.
17. In this view of the matter, the findings being concurrent findings of fact of the two courts below are binding on this Court. Even otherwise, we find no good ground to call for any interference on any of the factual findings. None of the factual findings are found to be either perverse or arbitrary or based on no evidence or against any provision of law. We accordingly uphold these findings."
7. This Court, recently in F.A.F.O. 1070 of 1993 (E.S.I.C. Vs. S. Prasad) decided on 26.10.2017 has followed the decision in Golla Rajana (Supra) and has held as follows:
"The grounds urged before this Court are in the realm of finding of facts and not a question of law. As far as question of law is concerned, the aforesaid judgment in Golla Rajanna Etc. Etc. Versus Divisional Manager and another (supra) in paragraph 8 holds as follows "the Workman Compensation Commissioner is the last authority on facts. The Parliament has thought it fit to restrict the scope of the appeal only to substantial questions of law, being a welfare legislation. Unfortunately, the High Court has missed this crucial question of limited jurisdiction and has ventured to re-appreciate the evidence and recorded its own findings on percentage of disability for which also there is no basis."
8. In view of the above, the appeal fails and is dismissed. The so called questions of law framed by the Insurance Company are answered against it. In fact the substantial questions of law raised are the questions of fact.
9. Interim relief, if any, shall stand vacated forthwith. The amount be disbursed to the claimant forthwith.
Order Date :- 27.4.2023
Mukesh
